U.S. Court of Appeals for the Fifth Circuit, 2008

Turner v. Quarterman

U.S. Court of Appeals for the Fifth Circuit · Decided July 10, 2008 · Smith, Clement, Prado

284 F. App'x 182

Counsel

Clifford Wayne Huff, Boerne, TX, for Petitioner-Appellant., Ellen Stewart-Klein, Office of the Attorney General Postconviction Litigation Div., Austin, TX, for Respondent-Appellee.

Cases that cite this one

2 later published cases cite this decision.

Hood v. Quarterman (5th Cir. 2008)
Kelly v. Quarterman (5th Cir. 2008)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

REVISED July 10, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 08-70025 FILED July 7, 2008 Charles R. Fulbruge III Clerk

CARLTON AKEE TURNER, Petitioner-Appellant, v. NATHANIEL QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas No. 3:04-CV-2232-D

Before SMITH, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

No. 08-70025

Carlton Turner appeals an order of the district court, entered June 19, 2008, denying his motion for appointment of counsel and his motion for stay of execution. In his merits brief, Turner raises only the following issue: “Does the federal appointment statute, 18 U.S.C. § 3599, provide prisoners sentenced un- der state law the right to federally appointed and funded counsel to pursue clem- ency under state law?”

In his brief, Turner “acknowledges that the law of this Circuit has fore- closed the issue.” He is correct that in Clark v. Johnson, 278 F.3d 459, 462-63 (5th Cir. 2002), this court held that the statute does not apply to state clemency proceedings.

The order of the district court is accordingly AFFIRMED. Turner’s sepa- rate motion for stay of execution filed in this court is DENIED. See Hood v. Quarterman, No. 08-70022, 2008 U.S. App. LEXIS 12800 (5th Cir. June 16, 2008) (per curiam), cert. denied, 2008 U.S. LEXIS 5027, 76 U.S.L.W. 3671 (U.S. June 17, 2008) (No. 07-11423), stay denied sub nom. In re Hood, 2008 U.S. LEXIS 5026, 76 U.S.L.W. 3671 (U.S. June 17, 2008) (No. 07-11406), stay denied sub nom. Hood v. Texas, 2008 U.S. LEXIS 5028, 76 U.S.L.W. 3671 (U.S. June 17, 2008) (No. 07-11452).

R. 47.5.4.

No. 08-70025 PRADO, Circuit Judge, concurring in part and dissenting in part: I agree that Fifth Circuit precedent forecloses Turner’s argument. See Clark v. Johnson, 278 F.3d 459 (5th Cir. 2002). However, the Supreme Court recently granted certiorari to consider this issue. Harbison v. Bell, No. 07-8521, 2008 WL 2484732 (June 23, 2008). Harbison will resolve a circuit split concerning whether the federal appointment statute applies to state clemency proceedings. Given the gravity and finality of the death penalty, I would grant Turner’s motion for stay of execution pending the outcome of that case. The Supreme Court employed a similar tactic when it stayed executions while it resolved a dispute involving lethal injection in Baze v. Rees, 128 S. Ct. 1520 (2008). Accordingly, I agree with the majority’s decision to affirm the ruling of the district court, but I dissent from the majority’s decision to deny Turner’s motion for stay of execution.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.